The Alternative Investment Fund Managers Regulations 2013
| Year | 2013 |
2013 No. 1773
Financial Services And Markets
The Alternative Investment Fund Managers Regulations 2013
Made 16th July 2013
Coming into force 22th July 2013
The Treasury are a government department designated1for the purposes of section 2(2) of the European Communities Act 19722in relation to financial services.
A draft of these Regulations has been laid before and approved by a resolution of each House of Parliament in accordance with paragraphs 2 and 2A(3)(a) of Schedule 2 to the European Communities Act 19723, section 429(2) of the Financial Services and Markets Act 20004and sections 784(3) and 1290 of the Companies Act 20065.
The Treasury make these Regulations in exercise of the powers conferred on them under section 2(2) of the European Communities Act 19726, and (in relation to Part 2 of Schedule 2 to these Regulations) sections 183, 188, 213(10), 214(5), 224(4), 262, 349 and 428(3) of, and paragraphs 13(1)(b), 14(1)(b), 17(b) and 22 of Schedule 3 to, the Financial Services and Markets Act 20007and sections 784 and 785 of the Companies Act 20068.
PART 1
Introductory provisions
Citation and commencement
1. These Regulations may be cited as the Alternative Investment Fund Managers Regulations 2013 and come into force on 22nd July 2013.
Interpretation
2.—(1) In these Regulations—
“the Act” means the Financial Services and Markets Act 2000;
“AIF” has the meaning given in regulation 3;
“AIFM” has the meaning given in regulation 4;
“Article 36 custodian” has the meaning given in regulation 57(5)(a);
“authorised AIF” means an AIF that is—
(a) an authorised unit trust scheme,
(b) an authorised contractual scheme, or
(c) an authorised open-ended investment company,
as defined in section 237(3) of the Act (other definitions)9;
“Commission Delegated Regulation” means the Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012, supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision10;
“competent authority”, other than in regulation 65, means the national authority of an EEA State other than the United Kingdom responsible for supervising AIFMs, and when used in relation to an EEAAIF or a full-scope EEAAIFM means—
(a) in relation to an EEAAIF, the competent authority in the EEA State in which the EEAAIF is registered or authorised, or (if the EEAAIF is not authorised or registered in an EEA State) in which the EEAAIF has its registered office or head office;
(b) in relation to a full-scope EEAAIFM, the competent authority that has authorised that AIFM;
“depositary” means a person appointed in compliance with the requirement for an AIFM to appoint a depositary at Article 21.1 of the directive;
“the directive” means Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers11;
“EEAAIF” means an AIF which—
(a) is authorised or registered under the applicable national law in an EEA State other than the United Kingdom; or
(b) is not authorised or registered in an EEA State, but has its registered office or head office in an EEA State other than the United Kingdom;
“EEAAIFM” means an EEA firm falling within paragraph 5(h) of Schedule 3 to the Act, which is exercising in the United Kingdom an EEA right deriving from the directive;
“ESRB” means the European Systemic Risk Board established by Regulation (EU) No 1092/2010 of the European Parliament and the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board12;
“EuSEF Manager” means the manager of a qualifying social entrepreneurship fund that is registered in accordance with Article 15 of the EuSEF Regulation;
“EuSEF Regulation” means Regulation (EU) No 346/2013 of the European Parliament and the Council of 17 April 2013 on European social entrepreneurship funds13;
“EuVECA Manager” means the manager of a qualifying venture capital fund that is registered in accordance with Article 14 of the EuVECA Regulation;
“EuVECA Regulation” means Regulation (EU) No 345/2013 of the European Parliament and the Council of 17 April 2013 on European venture capital funds14;
“external AIFM” has the meaning given in regulation 4(3);
“external valuer” means a person who performs the valuation function described in Article 19 of the directive in respect of an AIF managed by a full-scope UKAIFM, and is not the AIFM of that AIF;
“full-scope UKAIFM” means a UKAIFM which has a Part 4A permission to carry on the regulated activity of managing an AIF and is not a small authorised UKAIFM;
“full-scope EEAAIFM” means an AIFM authorised in accordance with Article 6.1 of the directive in an EEA State other than the United Kingdom;
“implementing provision” means a requirement that is imposed—
(a) by these Regulations;
(b) by the Commission Delegated Regulation;
(c) by any other directly applicable EU regulation made under the directive; or
(d) by or under the Act, if the provision implements the directive;
“internal AIFM” has the meaning given in regulation 4(3);
“managing an AIF” is to be interpreted in accordance with regulation 4(2), and cognate expressions are to be interpreted accordingly;
“professional investor” means an investor who is considered to be a professional client or may, on request, be treated as a professional client within the meaning of Annex II to the markets in financial instruments directive;
“qualifying social entrepreneurship fund” has the meaning given in Article 3(b) of the EuSEF Regulation;
“qualifying venture capital fund” has the meaning given in Article 3(b) of the EuVECA Regulation;
“the Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 200115;
“regulator’s notice” means a notice of intention referred to in paragraph 14(1)(b) of Schedule 3 to the Act;
“retail investor” means an investor who is not a professional investor;
“small AIFM” has the meaning given in regulation 9;
“small authorised UKAIFM” means a UKAIFM which—
(a) is a small AIFM;
(b) has a Part 4A permission to carry on the regulated activity of managing an AIF; and
(c) has not exercised the option mentioned in Article 3.4 of the directive to meet the full requirements of the directive;
“small registered EEAAIFM” means an AIFM which—
(a) is a small AIFM;
(b) has its registered office in an EEA State other than the United Kingdom;
(c) is registered in accordance with Article 3.3(a) of the directive; and
(d) has not exercised the option mentioned in Article 3.4 of the directive to meet the full requirements of the directive;
“small registered UKAIFM” means an AIFM entered in the register maintained in accordance with regulation 10(1);
“small third country AIFM” means a third country AIFM which is a small AIFM;
“third country” means a state which is not an EEA State;
“third country AIF” means an AIF which is neither an EEAAIF nor a UKAIF;
“third country AIFM” means an AIFM which has its registered office in a third country;
“UKAIF” means an AIF which—
(a) is an authorised AIF; or
(b) is not authorised or registered in an EEA State, but has its registered office or head office in the United Kingdom;
“UKAIFM” means an AIFM which has its registered office in the United Kingdom;
“working day” has the meaning given in section 191G(2) of the Act (interpretation of Part 12)16.
(2) Unless otherwise defined—
(a)
(a) any expression used in these Regulations which is used in the directive has the same meaning as in the directive;
(b)
(b) any expression used in these Regulations which is used in a directly applicable EU regulation made under the directive has the same meaning as in that regulation; and
(c)
(c) any other expression used in these Regulations which is defined for the purposes of the Act has the meaning given by the Act.
(3) Any reference in these Regulations to an application for a Part 4A permission to carry on a regulated activity, the giving of such a permission or a refusal to give such a permission, includes reference to an application to vary a Part 4A permission by adding that regulated activity to the activities to which the permission relates, such a variation of a Part 4A permission or a refusal so to vary a Part 4A permission.
Meaning of “AIF”
3.—(1) “AIF” means a collective investment undertaking, including investment compartments of such an undertaking, which—
(a)
(a) raises capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of these investors; and
(b)
(b) does not require authorisation pursuant to Article 5 of the UCITS directive.
(2) An AIF may be open-ended or closed-ended, and constituted in any legal form, including under a contract, by means of a trust or under statute.
(3) None of the following entities is an AIF—
(a)
(a) an institution for occupational retirement provision which falls within the scope of Directive 2003/41/ECof the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision17;
(b)
(b) a holding company;
(c)
(c) an employee participation scheme or employee savings scheme;
(d)
(d) a securitisation special purpose entity.
Meaning of “AIFM”, “managing an AIF”, “external AIFM” and “internal AIFM”
4.—(1) “AIFM” means a legal person, the regular business of which is managing one or more AIFs.
(2) Managing an AIF means performing at least risk management or portfolio management for the AIF.
(3) The AIFM of an AIF may be either—
(a)
(a) another person appointed by or on behalf of the AIF and which through that appointment is responsible for managing...
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